HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. The appellants / opposite party Nos. 3 & 4 have preferred this appeal against the order dated 28.08.2019 passed by the Learned District Consumer Disputes Redressal Forum (presently ‘the Commission’) at Baruipur, South 24 Parganas (in short, ‘the District Commission’) in connection with consumer case No. CC/88/2017.

2. Brief facts of the consumer case are that respondent Nos. 1 & 2 / complainants filed the consumer case No. CC/88/2017 against the appellants and others. Respondent Nos. 1 & 2 / opposite party Nos. 1 & 2 / appellants  Smt. Baishali Ghosh nee Mukherjee and Piyali Basu and opposite party Nos. 3 & 4 Ram Chandra Shaw and M/s. Sarada Construction are the Developers. Sale agreement dated 28.04.2014 was executed by and between the respondent Nos. 1 & 2 / complainants and appellant No. 1 / opposite party No. 3 i.e. the Developer and thereby the Developer agreed to sale a self contained flat measuring 774 sq. ft. super built up area, as succinctly  described in schedule B to the complaint for Rs.12,00,000/-, the entire consideration money of Rs.12,00,000/- has been paid by the respondent Nos. 1 & 2 / complainants to the appellant No. 1 / opposite party No. 3  on different dates. Sale deed has also been executed and registered on 27.07.2015 by the opposite party No. 3/ Developer in favour of the complainants. But the possession of the flat and completion certificate of the building are yet to be delivered to respondent Nos. 1 & 2 /  complainants. Consistent demands of the respondent Nos. 1 & 2 / complainants for possession of C.C. have turned into a blind alley. Now, respondent Nos. 1 & 2 / complainants have prayed for delivery of the physical possession of the flat, payment of compensation etc.

3. Hence this case.

4. The written version was filed by the opposite party No. 3 / Developer wherein it was contended that the case is not maintainable as it is not a consumer dispute. According to him possession of the flat was made over to the respondent Nos. 1 & 2 / complainants. The case is a vexatious one filed after a long lapse of time since the date of registration of the flat and, therefore, the case should be dismissed in limini with costs.

5. The written version was also filed by the respondent No. 4 / opposite party No. 2 i.e. the owner wherein it is contended, inter alia, that the Developer / opposite party No. 3 had cheated the opposite party Nos. 1 & 2 by transferring the subject flat to the complainants. According to them the subject flat falls into owner’s allocation and the opposite party No. 3 has no locus standi to transfer that flat to respondent Nos. 1 & 2 /  complainants. The respondent Nos. 1 & 2 / complainants and developer are in collusion with each other. The respondent Nos. 1 & 2 / complainants are not entitled to the possession of the flat and, therefore, the case should be dismissed in limini. The evidence on affidavit is laid by the complainants, the opposite party No. 2 and opposite party No. 3 & 4. Questionnaires and replies filed by the parties are kept on record. BNA was filed by the complainants and the same was also kept on record after consideration.

6. We have heard the Learned Counsel for the parties and have carefully gone through the records of the case. It is submitted by the Learned Counsel for the appellant that the impugned order and judgment being dated 28.08.2019 is unjustified, improper and liable to be set aside. The Learned District Commission below did not apply their judicious mind to pass the impugned order.

7. He has further urged that the complainants are not a ‘consumer’ at all in terms of the Consumer Protection Act, 1986.

8. He has further urged that in terms of the agreement for sale dated 28.04.2014 delivery of possession of the said flat has duly been handed over and consequently the execution and registration of the said flat has been occurred in favour of the opposite party Nos. 1 & 2 herein vide deed of conveyance dated 27.07.2015.

9. He has further urged that the opposite party Nos. 1 & 2 are well enjoying the said flat on the third floor.

10. He has further urged that since the date of execution and registration of the deed of conveyance dated 27.07.2015 there has been no communication made by the opposite parties to the appellant.

11. He has further urged that the opposite party Nos. 1 & 2 are not entitled to get any relief as prayed for in their petition of complaint. As such, Learned Advocate appearing for the appellant has prayed for to allow the present appeal. On the other hand, Learned Advocate appearing for the complainant has submitted that the impugned order is liable to be modified to the extent of delivery of possession of the flat as the same is pressed on the surmise and conjecture and is not based on true application of mind.

12. He has further urged that Learned Trial Commission below erred in holding that the respondent Nos. 3 & 4 and opposite party Nos. 1 & 2 land owners were not deficient in catering services to the complainants / respondent Nos. 1 & 2 and not to pass any order against the land owners / opposite parties.

13. He has further urged that the trial commission below has failed to pass any specific direction upon the opposite parties No. 1 to 4, Developer and land owners to deliver the flat in question after complying with all required formalities. As such, Learned Advocate appearing for the complainants / respondent Nos. 1 & 2 have prayed for modification of the said order passed by the Learned District Commission below.

14. Having heard the Learned Advocate appearing for the parties and on perusal of the record it appears to us that it is an admitted position that the opposite party Nos. 1 & 2 are land owners and opposite party Nos. 3 & 4 are Developers.

15. It is also an admitted position that sale agreement dated 28.04.2014 was executed by and between the complainants and the opposite party No. 3 i.e. the developer and thereby the developer agreed to sell a self contained flat measuring 774 sq. ft. super built up area as fully succinctly described in schedule B to the complaint for Rs.12,00,000/-.

16. It is also an admitted position that entire consideration price of Rs.12,00,000/- has been paid by the complainants to the opposite party No. 3 on different dates.

17. It is also an admitted position that sale deed has been executed and registered on 27.07.2015 by the opposite party No. 3 developer in favour of the complainants. Now, we shall have to consider as to whether the complainants’ prayer for delivery of possession of the flat, payment of compensation etc. be allowed or not by the District Commission.

18. It is the case of the complainants / respondent Nos. 1 & 2 that the possession of the flat has not been delivered to them by the Developer.  On scrutiny of the record it appears to us that the developer has not been able to produce any possession letter before the Forum to prove that the possession of the subject flat has been made over to the complainants by him. In the questionnaire filed by the complainants the opposite party No. 3 did not make any answer with regard to the delivery of possession in favour of the complainants. The opposite party No. 2 is the land owner. She also stated in reply that she is not responsible to give possession of the flat to the complainants.

19. From the above discussion it may be concluded that the possession of the subject flat has not been delivered to the complainants by the developer i.e. the opposite party No. 3. Although the opposite party No. 3 has effected a registered deed of conveyance in favour of the complainants in respect of the subject flat.

20. It is the case of the opposite party No. 2 / land owner that she has been cheated by the developer who had sold away the flat to the complainants from her owner’s allocation. Record goes to show that the developer / opposite party No. 3 has not been able to give satisfactory answer to the charge levelled against him by the land owner. On careful perusal of the development agreement dated 27.07.2011 it appears to us that the subject flat lies in the allocation of owner i.e. the opposite party No. 2 and developer i.e. the opposite party No. 3 in his shenanigans has sold away the said flat from the owner’s allocation to the complainants. The complainants also blindly purchased the same relying on the version of the opposite party No. 3. The development agreement dated 27.07.2011 discloses that the developer / opposite party No. 3 has no locus standi to sale the flat from owner’s allocation. He i.e. the developer has sold away the said flat violating the terms and condition of the agreement. Therefore, it may be concluded that in terms of the development agreement dated 27.07.2011 the sale deed dated 27.07.2015 is not lawful and invalid. Thus, the complainants cannot get the subject flat which has been registered in their favour. Since, the complainants entered into a development agreement with the opposite party No. 3 and they have already paid the consideration money amounting to Rs.12,00,000/- the complaint filed by the complainants should be allowed as because there is deficiency in service on the part of the opposite parties / appellants and others.

21. In the result, we hold that the Learned District Commission below has rightly held that the dexterous act of the developer appears to be more than deficiency in service.

22. Under this facts and circumstances and on consideration of the materials available on record we are of the view that the Learned District Commission below properly considered the evidences, the facts and circumstances of the case and finally arrived at the conclusion and passed the impugned judgment which according to us calls for no interference by this Commission and, as such, it is liable to be affirmed and the appeal is liable to be dismissed.

23. In the result, the appeal be and the same is dismissed. There will be no order as to costs.

24. The appeal is, thus, disposed of accordingly.